dissenting:
I respectfully dissent. The majority has determined it may not consider the issues presented by this appeal and must dismiss its finding that plaintiff lost standing to bring the declaratory judgment action by waiting too long, that he is barred by the doctrine of res judicata and that the public interest of the city of Aurora mandates that result. I do not agree with these determinations and believe we should consider the merits of the serious and continuing constitutional issue which is before us.
Plaintiff clearly had standing to bring this action as a voter, taxpayer and candidate for the office of mayor of Aurora. (See People ex rel. Engle v. Kerner (1965), 32 Ill. 2d 212, 205 N.E.2d 33, appeal dismissed (1966), 384 U.S. 30, 16 L. Ed. 2d 332, 86 S. Ct. 1284; Phillips v. Village of Libertyville (1970), 120 Ill. App. 2d 172, 256 N.E.2d 351.) The short delay brought about by his efforts to resolve the matter with the Aurora Election Commission and through the State Board of Elections and Attorney General does not suggest a basis for loss of his right to bring the action. If the majority relies upon principles of waiver, estoppel or laches, I note these affirmative defenses were not raised in defendant’s motion to dismiss and could not properly be relied upon by the trial court in its granting of that motion. (People ex rel. Lasser v. Ramsey (1959), 23 Ill. App. 2d 100, 161 N.E.2d 690; Orchard Brook Home Association, Inc. v. Joseph Keim Land Development Corp. (1978), 66 Ill. App. 3d 227, 382 N.E.2d 818.) I also suggest that the doctrine of res judicata is not applicable here, as it may only apply to an earlier final judgment rendered by a court of competent jurisdiction and not to a determination by the Aurora Election Commission as in this case. Matchett v. Rose (1976), 36 Ill. App. 3d 638, 344 N.E.2d 770.
The further conclusion of the majority that the public interest in the city of Aurora mandates dismissal of this appeal is not persuasive in light of the clear and continuing violation of the Election Code and Illinois Constitution here presented. This has resulted in the election of a mayor and council members to four year terms of office in a manner and at a time not authorized by the Election Code. We should take notice in this regard that as shown by the specimen ballot published by defendants, a nonpartisan election will be held in Aurora on April 3,1979, at which four aldermen will be elected. If political party participation in this election has been barred by virtue of the usurption of authority over the election process by the city of Aurora presented in this case, as I believe it has, then it represents a further demonstration of the compelling public interest to which we should give our attention.
I share the view of plaintiff and the State Board of Elections that the city of Aurora does not have the power to avoid the provisions of the Election Code which require it to hold partisan primary and general elections and do so on days fixed therein (Ill. Rev. Stat. 1975, ch. 46, pars. 2 — 29, 7 — 1, 7 — 2,7—5). Defendants rely upon Aurora’s power as a home-rule unit to, by referendum, alter its form of government and method of selection of its officers as supporting its departure from the Election Code. It contends it may thereby validly fix the dates upon which it will hold elections and may permit only independent candidates to participate therein.
As I see it, however, article III, section 4, of the Illinois Constitution of 1970 clearly mandates a different conclusion and leaves with the General Assembly the power to enact general, uniform and statewide provisions governing the conduct of all elections. The time elections must be held, their notice requirements and whether they will be partisan or nonpartisan are matters relating to the conduct of elections which are of statewide concern and are restricted by the Constitution itself to State control. While it is clear a local governmental unit may, by referendum, change its form of government and may determine what officers it will have and their terms of office, I do not find in the power granted by article VII, section 6(f) to “provide for its officers, their manner of selection and terms of office” all that defendants find there. I would understand it to be simply a grant of power to a local governmental unit to determine what type of officers it will have, whether they will be elected or appointed and, if so, by whom. If the manner of selection of officers is intended by the constitution to include the election process itself, as urged by defendants, then, of course, there will be little limitation on what each of the many units of local government might separately choose to do in this regard.
I note also that article VII, section 7(2), (3), gives the same powers to counties and municipalities other than home-rule units to change their form of government and to provide for officers and their manner of selection. It would seem apparent that the fact the city of Aurora is a home-rule unit does not in itself add anything to the powers it may have in this regard.
I find nothing in the record of proceedings of the constitutional convention which supports defendant’s view (Sixth Illinois Constitutional Convention, Record of Proceedings (1969-1970)) and, to the contrary, it has been said that “[ejection laws therefore seemed to fall entirely within the jurisdiction of the legislature, rather than that of home rule units or their voters.” Baum, A Tentative Survey of Illinois Home Rule (pt. 1), 1972 U. Ill. L. F. 137, 146 n. 37.
The questions raised in this case have not been considered by our courts of review and ought to be laid to rest. Certainly it is inevitable that by quo warranto or other appropriate action they will again be presented in Aurora with each election held there contrary to the provisions of the State Election Code and I would resolve them now.